North Carolina v. TVA

On January 13, 2009, in '''North Carolina ex rel. Cooper v. Tennessee Valley Authority''' (W.D. N.C. Jan. 13, 2009), North Carolina District Judge Lacy Thornburg declared that air emissions from three coal-fired plants located in eastern Tennessee and one plant located in Alabama, all operated by the Tennessee Valley Authority, are a public nuisance under state law. On July 26th, 2010, the Fourth Circuit Court of Appeals dismissed the lawsuit, setting aside an injunction that would have required the installation of more than a billion dollars worth of emissions control technologies at four TVA plants in Alabama and Tennessee.

District Court ruling
A public nuisance is an "unreasonable interference" with the public's right to property, health, safety, peace, or convenience. The court said the plants contribute to ‘‘significant hurt, inconvenience, [and] damage’’ in North Carolina.

The State of North Carolina brought the lawsuit to force TVA to employ tighter pollution controls and reduce harmful air emissions from its coal-fired power plants. The plants are in states other than North Carolina. The State of North Carolina contended that airborne particles from TVA’s plants entered North Carolina in unreasonable amounts, constituting a public nuisance and threatening the health of millions of people, the financial viability of the region, the functioning of natural ecosystems, and costing the state government and its citizens billions of dollars every year in health care expenses, sick days, and lost tourism revenue.

The court found against TVA despite its compliance with all applicable federal and state regulations. As a remedy, the court ordered that the TVA proceed with plans to install enhanced pollution controls at the plants and reduce emissions of certain pollutants by specific time limits, at an estimated cost of approximately $1 billion.

Appeal
In January 2009 TVA filed to appeal the district court’s decision to the Fourth Circuit Court of Appeals.

In June 2009, the State of Alabama filed a Motion to Intervene, asking to be added as a party to the lawsuit with equal rights to TVA and the State of North Carolina, with full briefing and oral argument privileges. This was opposed by the State of North Carolina because the State of Alabama was not a party in the underlying action, and did not seek to intervene at the trial court level. Regardless, the Fourth Circuit granted the State of Alabama’s motion.

Reversal
On July 26th, 2010, the Fourth Circuit Court of Appeals dismissed the lawsuit, setting aside an injunction that would have required the installation of more than a billion dollars worth of emissions control technologies at four TVA plants in Alabama and Tennessee.

The Fourth Circuit rejected the use of “vague public nuisance standards” to address activities that are "expressly permitted and extensively regulated under the Clean Air Act." The Court argued the claim had the "potential for chaos" among states from a "patchwork of nuisance injunctions" and for "disruption of expectations and reliance interests" of utilities that have complied with the Act’s requirements. However, the Court refrained from completely preempting the field of air emissions regulation, noting that the Clean Air Act’s savings clause may allow for certain common law nuisance claims.

Citing principles of federalism, the Fourth Circuit also criticized the district court’s decision for its application of North Carolina law extraterritorially to TVA plants located in Alabama and Tennessee by crafting an injunction that relied on the emissions standards of a North Carolina state law. The three-judge panel highlighted the "remedies" that remain available to North Carolina under statutory law, including the Clean Air Act’s Section 126 petition process, the comment period for State Implementation Plans, judicial review of EPA actions, as well as citizen suit remedies under the Clean Air Act.

Attorney generals of sixteen other states, including New York’s Andrew Cuomo, filed an amicus brief supporting the authority of states to bring public nuisance actions to abate interstate pollution. Although the Fourth Circuit’s decision did not involve claims relating to greenhouse gas emissions, a recent petition filed in Connecticut v. AEP challenging the Second Circuit’s common law nuisance findings with respect to greenhouse gas emissions cited North Carolina v. TVA as evidence that "comprehensive regulation" under the Clean Air Act can displace federal common law nuisance claims.

April 2011: TVA to phase out 18 coal units, install pollution controls
On April 14, 2011, TVA and North Carolina settled the 5-year-old lawsuit - North Carolina v. TVA - over TVA emissions from its coal-fired plants. The deal was part of a larger settlement with the U.S. Environmental Protection Agency over TVA violations of the clean air act at 11 of its coal-fired plants in Alabama, Kentucky and Tennessee.

As part of the North Carolina agreement, TVA agreed to phase out 18 units of its coal plants, adding up to 2,700 MW, and to install modern pollution controls on three dozen additional units. The phase out includes two units at the John Sevier Fossil Plant, all 10 units at the Johnsonville Fossil Plant, both in Tennessee, and six units at the Widows Creek Fossil Plant in north Alabama.

As part of the EPA agreement, TVA will invest an estimated $3 to $5 billion on pollution controls, invest $350 million on clean energy projects, and pay a civil penalty of $10 million.

External Resources
An anaylsis of the lawsuit can be found here: http://www.mcguirewoods.com/news-resources/item.asp?item=3802

Related Sourcewatch resources

 * Alabama and coal
 * Clean Air Act
 * Coal plant litigation
 * Connecticut v. AEP
 * EPA Deseret ruling
 * Existing Coal Plant Litigation and Controversy
 * Massachusetts v. Environmental Protection Agency
 * North Carolina and coal
 * Tennessee Valley Authority